January 24, 2018

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An amended version of a bill that would limit courts’ ability to modify fixed-sentence plea agreements is now headed to the full Indiana Senate.

At its meeting Tuesday morning, the Senate Corrections and Criminal Law Committee unanimously passed Senate Bill 64, a measure authored by committee chair Mike Young, R-Indianapolis, to require courts to obtain a prosecutor’s consent to modify a fixed-plea agreement. Young filed SB 64 in response to State v. Stafford, 86 N.E.3d 190, 193 (Ind. Ct. App. 2017), in which the court of Appeals ruled Indiana Code Section 35-38-1-17(l) allowed for such modifications.

That statute specifically does not permit a person to “waive the right to sentence modification under this section as part of a plea agreement.” The Stafford court read that statute as a complete prohibition on the waiver of sentence modification, even in fixed-sentence plea agreements.

But Young and several other lawyers and legal organizations, including Sen. Aaron Freeman, R-Indianapolis, and the Indiana Prosecuting Attorneys Council, said the wording of I.C. 35-38-1-17(l) — which was amended as part of the 2014 criminal code reform legislation — was never meant to give courts full discretion to modify fixed plea agreements. Instead, the statute was designed to prohibit plea agreement provisions that explicitly waived the right to future modification.

Since the Stafford ruling, another panel of the Indiana Court of Appeals reached a similar decision in the Jan. 11 case of Alberto Baiza Rodriguez v. State of Indiana, 20A03-1704-CR-724. Young told the committee that if SB 64 does not pass, similar rulings will continue to be handed down — rulings that fly in the face of long-accepted criminal sentencing practices.

The committee also passed an amendment to SB 64 that would require courts to advise defendants who wish to enter into fixed-term plea agreements that they are giving up both their right to appeal their sentence, and the right to a future modification. That amendment came about after Senate Minority Leader Tim Lanane, D-Anderson, raised concerns at last week’s committee meeting about whether criminal defendants understood the implications of fixed plea agreements.

While SB 64 is moving through the legislature, the Indiana Supreme Court is taking up the issue of fixed plea modifications in the Stafford case. The high court is scheduled to hear oral argument in that case at 9:45 a.m. on Jan. 25.

Look for more on SB 64 and the Stafford case in the Jan. 24 issue of Indiana Lawyer.

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Olivia Covington joined the Indiana Lawyer team as a reporter in September 2016 and took on the role of digital editor in October 2017, when she began handling the newspaper’s social media presence.

She comes to the Indiana Lawyer from The (Columbus) Republic and has received honors from both the Hoosier State Press Association and Indiana Associated Press Media Editors for her work there.

She holds a bachelor’s degree in journalism from Franklin College and is currently pursuing a master’s degree in journalism from Ball State University.